At the end of August, the Peruvian government announced that for the first time in the country, a prior consultation would take place in the indigenous communities of the Amazonian region of Loreto regarding the drilling of an oilfield at the watershed of the Pastaza, Corrientes and Tigre rivers.

This process, which is part of the Indigenous and Native Peoples’ Right to Prior Consultation Law, will be led by the Vice Ministry of Intercultural Affairs at the Ministry of Culture. The consultation will start early next year, after the parcel for oil drilling is tendered and the winner of the concession is identified.

“Only at that point will the stages of information-sharing and dialogue be carried out with the indigenous communities,” Iván Lanegra Quispe, vice minister of Intercultural Affairs, told the press.

Ultimately, that means the indigenous peoples that could be affected will not have been consulted during the beginning of the concessions process, when the land is allocated, in violation of the International Labor Organization’s Convention 169 on indigenous and tribal peoples. The Convention, in force in Peru since it was ratified by the Democratic Constituent Congress in 1995, requires consultation of “the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly.”

According to Lanegra Quispe, “not all of the measures required by the state must be consulted,” highlighting that consultation will apply exclusively to indigenous populations directly affected.

Even if the Peruvian law doesn’t establish a right to veto, it does state that the goal of consultation is to “reach agreement or consent between the State and the indigenous or native populations regarding legislative or administrative measures that directly affect them, through an intercultural dialogue that guarantees their inclusion in the State’s decision-making process and the adoption of measures respectful of their collective rights.”

Hope cut short
The Prior Consultation law was unanimously approved in August 2011 by Congress, and entered into force eight months later when regulatory proceedings were made official. Those regulations, however, were not accepted by the indigenous communities, which feel their suggestions weren’t taken into consideration.

“What the regulatory process did was dismantle the hope for clear and legitimate indigenous institutions. That reflects the interests of mining and oil companies. It is the continuation of a policy carried over from the administration of Alberto Fujimori [1990-2000], it is a proposal that favors an agenda of development, extractivism, and neoliberalism,” said Alberto Pizango, president of the Interethnic Association for the Development of the Peruvian Rainforest, or AIDESEP, which represents more than 1,500 indigenous Amazonian communities, during the release of the Alternative Report 2012 on Sept. 13, regarding compliance with Convention 169.

“During the very process of consulting regulations, during the group meetings, mining projects were being approved. The law doesn’t capture the spirit of Convention 169,” Pizango said. “We have said that in the first place seven articles must be amended and based on that we would decide in a unified and consensual manner regarding the regulations, and in that way we would avoid the conflicts we can already see coming.”

“They have always told us that indigenous people don’t know, don’t think, don’t suggest anything. Faced with this act of bad faith by the Peruvian State, we are saying no to the legal consultation framework, instead [we support] compliance with Convention 169 and the communities’ self-determination.” Pizango said.

On Sept. 11, PeruPetro, the state company tasked with determining hydrocarbon concessions, announced 36 new fields for exploration and drilling would be tendered, largely in the Amazon region, adding that in accordance with the consultation law, private firms will carry out the consultation after the lots are awarded, but “before the contracts are signed.”

For Pizango, this is an example of the contradictions that exist, since “on one hand, the Consultation Law is approved and a discourse in favor of consultation is established, but on the other hand, extractive industries are given incentives.”

Currently, 75 percent of the Peruvian Amazon is under concession and the majority of oil concessions overlap with nature reserves and indigenous territories, according to the Instituto del Bien Común, or Common Good Institute, which works with rural communities.

Eli Pangoa, a Shawi leader, denounced the case of Korean oil firm Ecoamerica, which requested a parcel in the northern rainforest.

“We found out in 2009 that Ecoamerica was asking for a 72,654 Ha (180,000 acres) lot. In 2010, the Regional Government of San Martin said in a report that the request overlapped on 31,000 Ha (76,600 acres) of land where three native communities live. The Constitutional Court issued a ruling that declared the request inadmissible, but we are not happy because the state is not fulfilling its duty. What we want is legal security [for our territory] ... The state has a responsibility, an obligation, to protect our rights, our territory, but is not fulfilling that. To the State we are second class citizens, we do not exist as a people,” Pangoa said.

A country parceled off
Former Environment Ministry Ricardo Giesecke said during a roundtable discussion “New Mining in Peru,” organized by nongovernmental organizations Comunicaciones Aliadas and Red Muqui on Aug. 28, that the “Prior Consultation law is necessary precisely because there is no real land use planning in the country itself. In reality, the people in their regions don’t know [their land’s] potential, the dangers, the threats, the vulnerabilities — nothing that happens on their land — yet when mining concessions begin to appear, they become part of the source of conflicts, because in this country mining concessions are still allocated without asking anyone anything.”

Peru’s Geological, Mining and Metallurgical Institute, or INGEMMET, part of the Ministry of Energy and Mines, is the entity charged with granting the mining concessions. According to Giesecke, INGEMMET has carved up the country, dividing it into a grid without taking into account whether there are population centers, protected areas, or indigenous territories in each lot.

“One day someone can come and say ‘I have a concession and your land is within my concession’ and that alone is enough to have a conflict in the making,” Giesecke said.

At the same roundtable, Carlos Monge, regional coordinator in Latin America for the Revenue Watch Institute, an organization that monitors the extractive industry, said that “not only have all of the mining concessions been given by the central government through INGEMMET — as a petitioner’s right, without any prior condition or requirement when the Convention 169 had already been approved and therefore in violation of the law — but also 70 percent to 80 percent of them have been granted for speculative purposes and do not really claim any serious exploration or production project or anything .”

Giesecke and Monge agreed profound changes to the concessions system are needed.

“[Concessions] should be granted after the zoning and land use planning processes are carried out, so that concessions are allocated and negotiated where they are appropriate. Moreover, [it’s necessary] to discuss what to do with what has already happened, with the previous regulatory and policy framework, which we know is bad and needs to be corrected,” said Monge.

Giesecke insisted that those groups with the economic power have the real political power. “All of our laws are made so that the economic powers are the ones who ultimately make the decisions,” he said. “The legislation and structure of economic power need to be revised.” —Latinamerica Press.